United States v. Zimny

United States District Court, D. Massachusetts

July 28, 2017

UNITED STATES OF AMERICAv.MARK J. ZIMNY

FINDINGS AND CONCLUSIONS

RYA W.
ZOBEL, JUDGE

On
January 24, 2017, the United States Court of Appeals for the
First Circuit remanded the case United States v.
Zimny to this court with instructions to conduct further
investigation into a juror misconduct allegation raised by
defendant. The additional alleged misconduct was described in
a comment posted on June 29, 2015, 12:24 am, on the
"Shots in the Dark" biog (the "additional
comment"). See United States v. Zimny, 846 F.3d
458, 472 (1st Cir. 2017). Specifically, the Court of Appeals
directed this court to: (1) ascertain whether the events
described in the additional comment actually occurred; (2) if
so, determine whether it was prejudicial; and (3) decide
whether the information unearthed from the investigation
warrants granting defendant a new trial. SeeId. at 472.

I.
Background

As
relevant to the instant inquiry, on April 8, 2015, after a
thirteen-day trial, a jury found defendant, Mark J. Zimny,
guilty of five counts of wire fraud, five counts of engaging
in unlawful monetary transactions, two counts of filing false
tax returns, and one count of bank fraud. See Docket
# 220. Defendant initially moved for a new trial and
requested the court to conduct an interrogation of Juror # 8
about potential jury misconduct after learning of a comment
posted on the "Shots in the Dark" blog. Docket #
225. This comment, dated April 7, 2015, stated,
"It's gone a week longer than the judge has hoped
dude [sic] to Lily Chows [sic] testimony. When I left the
jury last week due to an illness they were 50/50."
\± at 5. On June 23, 2015, 1 conducted an
inquiry of Juror # 8 and determined that based on her
testimony no jury misconduct had occurred. See infra
Part II.B. Four days later, on June 29, 2015, a second
anonymous comment that is the subject of the current
investigation was posted on the same blog.

This
comment stated:

Boy this is getting comical. I've been following it on
and off, and was also on the jury. Mama June, and those who
were there know what I'm talking about, was spouting
about the 'shots in the dark' blog since day one. Its
[sic] why she conveniently got 'sick' and didn't
finish her service. Several other jurors told her to stfu and
got annoyed. '[I]diof doesent [sic] describe the half of
it.

Zimny, 846 F.3d at 464. Defendant moved for
reconsideration and a new trial in light of this additional
comment. Docket # 259. I denied the motion, Docket # 283,
which defendant timely appealed, Docket # 301. Pursuant to
the remand order of the Court of Appeals, below are the
findings and conclusions of the investigation regarding this
additional alleged jury misconduct.[1]

II. The
Initial Investigation

A.
Postal Inspector Investigation

Following
the remand order, the court convened the parties on February
2, 2017, to discuss the direction of the investigation. The
parties agreed as a first step to task a postal inspector
with identifying the author of the comment by identifying the
device from which the additional comment was sent.
See Docket # 338, at 15-21. On March 15, 2017, the
government reported the postal inspector's initial
findings. See Docket # 345. The inspector determined
that the comment had an internet protocol address ("IP
address") associated with an internet service provider
located in Singapore. See Docket ## 345, 348, 349.

The
government reported that trying to obtain the specific IP
address user information would be a difficult and lengthy
process under the laws of Singapore.[2]Docket # 352, at 4. After
hearing both parties, the court determined that the search
for the author of the additional comment through
identification of the IP address user from which the comment
was sent was both uncertain and likely time consuming.
See Docket # 352. Both parties agreed. See jg\ at
5-6 ("MR. THOMPSON: I don't oppose the government
pursuing the matter [in Singapore] further, but my
understanding is that we're talking about an
investigation that might take more than a year, and I
don't think that it's appropriate to continue this
investigation for that long."); Id. at 33
("MR. WILD: I suggest to the Court, you're correct,
the only further record possible to be made at this point,
pending some information, is inquiry of the jurors
....").

B.
Decision to Bring Back the Jurors

Consequently,
on March 29, 2017, the court decided to move the
investigation forward by interrogating all of the jurors,
with the exception of Juror # 8, individually to determine
the questions raised by the Court of Appeals. See
Docket ## 352, 356.

Defendant
requested that the court summon Juror # 8 because she
"may establish that the additional juror comment
reflects events that actually occurred-----" Docket #
348, at 2.[3] I decided that it would be most
appropriate to proceed with summoning the other thirteen
jurors first for several reasons. First, I had already
questioned Juror # 8 on June 23, 2015, to ask about the
initial comment posted on April 7, 2015, and asked her
whether she had discussed the blog with any of the jurors and
whether the jury had engaged in premature deliberations.
See Docket # 256. She testified that although she
had seen the blog and authored the April 7 comment, she had
done so only after she was excused from the jury.
Id. at 9-10. She further testified that she never
engaged in premature deliberations with any of the jurors.
Id. at 11-15. Second, even if she were now to
testify to the contrary and state that she had told the
jurors about the blog, the court would still need to
interrogate each juror to determine whether the alleged
misconduct indeed transpired, and if so, what the jurors had
heard and when. Thus, in order to expeditiously conduct the
investigation, the court denied defendant's request, but
noted that it would call Juror # 8 "if we need to,
" Docket # 352, after conducting the examination of the
other thirteen jurors.[4]

III.
Preparing the Juror Investigation Questions

A.
Drafting The Script

In
response to both counsel's conflicting schedules, the
court initially set the juror interrogation to proceed on May
23 and 24, 2017. See Docket # 352, at 44-45. In preparation
for the interrogation, the court ordered the parties to
submit, by the latter part of April, a joint proposed
explanatory letter that would accompany the summons and a
joint proposed script for the interrogation. SeeId. at 46-48. The court intended to issue the
summons to the jurors by May 1, 2017. See ]g\ Both parties
failed to submit the joint proposed documents by late
April.[5] This resulted in delaying the juror
inquiry, which was subsequently rescheduled to June 21-23,
2017. The court issued a second order on May 8, 2017,
directing the parties to again submit a joint proposed
explanatory letter by May 19, 2017, and a joint proposed
script by May 26, 2017. See Docket # 360. The parties
ultimately made separate submissions, albeit defendant's
was untimely. See Docket ## 373, 375.

The
court convened the parties on May 31, 2017, "to receive
counsels' suggestions, objections, and arguments
concerning the conduct of the interrogation of the
jurors" Docket # 379, at 1. Based on counsel's input
during this hearing, the court issued its Juror Investigation
Script and ordered the parties to provide reasonable and
appropriate suggestions by June 12, 2012. See Docket # 382.
The government timely provided its proposals, Docket # 384;
defendant submitted his proposals on June 13, 2017, Docket
#387.[6]

On June
20, 2017, the day prior to the examinations, defendant
submitted two additional proposals to the juror script. See
Docket # 389. The first proposal was to ask the jurors
whether they had heard of the "Shots in the Dark"
blog under the heading of the "Harvard Admissions
Lawsuit" to avoid missing affirmative responses from
jurors who may be familiar only with the latter title. The
court adopted this proposal. The second proposal related to
jurors' potential connections with Singapore. At the
hearing, the court explained that its questions about
international travel accounted for this concern. See
Docket # 393, at 7.

B. The
Script

In its
final version of the script, the court adopted
defendant's request to advise the jurors, out of an
abundance of caution, of their Fifth Amendment right not to
incriminate themselves and to remain silent. In compliance
with Federal Rule of Evidence 606(b), the court further
advised each juror that it would not ask him or her about the
jury's deliberative processes. The court tailored its
questions to ensure that it would not ask any subjective
questions. The script was limited to questions about whether
the jurors had heard of the "Shots in the Dark" or
"Harvard Admissions Lawsuit" blog, and whether the
events described in the additional comment had transpired. As
noted above, the initial findings by the postal inspector
uncovered that the comment had an IP address associated with
a company located in Singapore. Accordingly, the court
included questions about jurors' travel after their
service was completed.

IV.
Juror Questioning

The
summoned jurors all appeared for interrogation. They were
questioned individually over the course of three mornings.
The jury clerk impeccably carried out the logistics such that
jurors were isolated from one another prior to and after each
appeared. The court questioned each juror consistent with the
script that had been developed with counsel's input.
After the court completed its questions, both parties'
had the opportunity to submit additional proposed questions
to the court, some of which the court put to the juror.

I
credit the testimony of each juror and, based on that
...

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